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Written by: Tushita Poddar
INTRODUCTION
ADR stands for "alternative dispute resolution," which pertains to any method of resolving conflicts beyond the courts. Negotiation, conciliation, mediation, and arbitration are all examples of ADR. As long lines in the courts, growing legal expenses, and significant delays persist to afflict clients, numerous states are exploring Alternative Dispute Resolution (ADR) systems. Several of these initiatives are optional; others are compulsory. ADR further enables the litigants to develop more innovative alternatives that even a courtroom might not be able to assert lawfully. The disputes are resolved with the help of a third neutral party.
WHAT IS THE PURPOSE OF ADR IN INDIA?
The Indian legal system is facing significant pressure for a myriad of purposes, the most serious of which is the large number of cases standing in courts. The proportion of cases brought in Indian courts has risen significantly in recent years, culminating in standing cases as well as lags, highlighting the necessity pertaining to alternative dispute resolution techniques. The Chief Ministers and Chief Justices of States passed a Motion in this regard during a meeting held in New Delhi on December 4, 1993, underneath the leadership of the then Prime Minister and supervised over by the then Chief Justice of India. In a growing country such as India, where major financial developments are ongoing inside the context of the legal system, techniques for faster conflict settlement are needed to reduce the pressure on the court system as well as to provide ways for quicker conflict resolution. There is no great approach than to work to improve alternative dispute resolution (ADR) mechanisms such as arbitration, conciliation, mediation, and negotiation. In the landmark decision Salem Advocate Bar Association, Tamil Nadu v. Union of India[1], the Hon'ble Supreme Court of India decided that all courts should lead litigants to alternative conflict resolution procedures such as arbitration, conciliation, judicial settlement, or mediation. The goal of ADR is to promote social, economic, and political balance while preserving humanity's dignity, as stated in the preamble. ADR also aims to promote fair treatment and free legal assistance as per Article 39-A of the State Policy Directive Principles (DPSP). In Sanrachna (India) Inc. v. A. B. Hotels Ltd.[2], the Delhi High Court made very clear that the Arbitration and Conciliation Act 1996 has to be administered very cautiously and efficiently.
ALTERNATIVE DISPUTE RESOLUTION METHODS
Some of the alternative dispute resolution methods that the litigants can strive for are as explained below:
ARBITRATION
Part I of the Arbitration and Conciliation Act 1996 describes the process of arbitration. Only if the litigants have signed a legitimate Arbitration Agreement before the occurrence of the conflict, may the arbitration process begin. Such an arrangement should be in written form, according to Section 7. The contract that is the subject of the dispute must either include an arbitration clause or relate to a distinct written paper agreed upon by the parties that incorporates the arbitration agreement. Written communication like letters, telexes, or telegrams, which give a history of the arrangement, can also be used to infer the presence of an arbitration agreement.
A legitimate written arbitration agreement is sometimes defined as an interchange of summons of claim and rebuttal in which one side claims the occurrence of an arbitration agreement and the other side does not dispute it.
Any side to a conflict could begin the process of establishing an arbitrator, but if the other side refuses to comply, the party can request arbitration from the Chief Justice's administration. A party can only dispute an arbitrator's nomination for the following reasons: substantial suspicion in the arbitrator's fairness and the arbitrator's inadequate competence as stipulated by the arbitration agreement. The arbitration panel has authority over its territory. As a result, if a person chooses to contest the arbitral tribunal's competence, it can only do so in front of the panel.
In the case of Uttarakhand Purv Sainik Kalyan Nigam Ltd. Vs. Northern Coal Field Ltd.[3], the Supreme Court ruled that an arbitrator would resolve the argument of limitation. It further maintained that the Arbitration Act's statutory objective is for parties to have complete control over the arbitration process with little judicial involvement. In Rashid Raza Vs. Sadaf Akhta[4], a three-member bench of the Supreme Court decided that the impact of an arbitration agreement will not be aggravated by "mere charges" of deceit.
MEDIATION
Mediation, often known as "appropriate dispute resolution," is a type of alternative dispute resolution (ADR) that tries to help two (or more) parties to a dispute to achieve an understanding. Instead of complying with something enforced by a foreign entity, the litigants define the terms of any agreements made. Mediators utilize relevant interventions and/or abilities to help disputants initiate and/or improve communication, intending to assist the litigants in negotiating a deal (with real consequences) on the debated topic.
Justice Markanday Katju in the case of Moti Ram Tr. Lrs.& Anr. vs. Ashok Kumar & Anr.[5], upheld that the faith or belief that is established in the mediation procedure is absent in other statutory laws as mediation is a completely confidential procedure.
CONCILIATION
Part III of the Arbitration and Conciliation Act 1996 describes the process of conciliation. Conciliation is a type of arbitration that is less formal. There is no necessity for any previous agreement in this procedure. Any side can seek the employment of a conciliator from the other. It is desirable to have just one conciliator, although two or three are acceptable.
[1]Salem Advocate Bar Association, Tamil Nadu v. Union of India, AIR 2003 SC 189. [2] Sanrachna (India) Inc. v. A. B. Hotels Ltd.,1959 AIR 1262, 1960 SCR (1) 368. [3] Uttarakhand Purv Sainik Kalyan Nigam Ltd. Vs. Northern Coal Field Ltd.(1988) 2 SCC 338. [4] Rashid Raza Vs. Sadaf Akhta (2016) 10 SCC 386. [5] Moti Ram Tr. Lrs. & Anr. vs. Ashok Kumar & Anr.,(2008) 2 PLR 110.